Perfuming a pig. That’s the best that can be said of the revised version of the Animal Enterprise Terrorism Act rushed through the Senate on the last night before Congressional recess. The legislation is still vague, still overly broad, and still a direct threat to basic First Amendment rights — lawmakers just tried to sweeten the stench.

Instead of substituting amendments to change specific lines of the bill — or, more appropriately, rejecting the bill in its entirety — Senator Diane Feinstein, a Democrat from California, made a last-minute complete substitution. The rewritten "eco-terrorism" legislation passed by unanimous consent. Not one Senator opposed.

It’s clear that Feinstein’s revisions were a direct response to civil liberties concerns. That’s a good thing. But let’s take a closer look at the "fixes" in this legislation, and the problems that still remain.

MINOR CHANGES IN THE SENATE BILL

*The Senate bill spells out that activists must damage "real property." S.3880 says the law targets anyone who

intentionally damages or causes the loss of any real or personal property (including animals or records) used by animal enterprise, or any real or personal property of a person or entity having a connection to, relationship with, or transactions with an animal enterprise. [emphasis added]

Compare the same clause to the existing House version, which targets anyone who "intentionally damages, or causes the loss of any property…"

At best, this is a baby step in the right direction. It shows that lawmakers have heard civil liberties concerns that the overly broad language in the bill could sweep in basic First Amendment activity that threatens corporate profits. This language is a bit more specific, bringing the law more in line with its alleged intent: targeting illegal, underground actions in the name of animal rights. As I’ll explain shortly, though, it doesn’t go nearly far enough.

*The Senate bill rewrites the "civil disobedience clause" in the penalties section of the Animal Enterprise Terrorism Act.
The previous Senate version, and the current House version, spell out:

(1) for an offense involving exclusively a non-violent physical obstruction of an animal enterprise or a business having a connection to, or relationship with, an animal enterprise, that may result in loss of profits but does not result in bodily injury or death or property damage or loss–
(A) not more than $10,000 and the length of imprisonment shall be not more than 6 months, or both, for the first offense; and
(B) not more than $25,000 and the length of imprisonment shall be not more than 18 months, or both, for a subsequent offense; [emphasis added]

The revised Senate version cut out the references to "non-violent physical obstruction," undoubtedly a response to public outrage that a "terrorism" bill could target non-violent civil disobedience.

The revised penalties section item now says punishment shall be:

(1) a fine under this title or imprisonment not more than 1 year, or both, if the offense does not instill in another the reasonable fear of serious bodily injury or death and–
(A) the offense results in no economic damage or bodily injury; or
(B) the offense results in economic damage that does not exceed $10,000;

In other words, lawmakers put some window dressing on this section, to distract from the fact that it spells out penalties for actions that don’t "instill in another the reasonable fear of serious bodily injury." But at the same time, the penalty for such non-violent action is increased to a maximum of one year, compared to six months in the prior versions.

MAJOR CONCERNS STILL REMAIN

*This vague and overly broad legislation directly puts non-violent activists at risk. The offense section spells out that the bill targets anyone who damages "real or personal property," but it also targets anyone who

intentionally places a person in reasonable fear of the death of, or serious bodily injury to that person, a member of the immediate family (as defined in section 115) of that person, or a spouse or intimate partner of that person by a course of conduct involving threats, acts of vandalism, property damage, criminal trespass, harassment, or intimidation;

There are two huge problems here. One is the use of "reasonable fear." The word "eco-terrorism" is being batted around recklessly by industry groups, in a scare-mongering campaign that has included
full-page ads in major newspapers and even stooping so low as to
call a children’s movie "soft-core eco-terrorism for kids." They are doing everything they can to create this fear through scare-mongering: that’s the point. In light of this political climate, it’s impossible to discuss "reasonable fear," because industry groups are throwing all their weight into making the unreasonable seem reasonable — into making the public afraid of non-violent activists, so they can push a political agenda.

The second huge problem is that the "course of conduct" clause, which puts restrictions on the "reasonable fear" offense, includes criminal trespass, harassment and intimidation. These generic charges are frequently used to arrest activists when nothing else will "stick." Here’s a very likely scenario: A group of activists holds a loud protest outside an executive’s home or office on a daily basis as part of a national campaign. Activists yell and chant as people enter the building. Some wear masks or bandanas (which is increasingly common at protests, because activists fear being
"blacklisted"). Toss in the climate of fear that industry groups have created, and suddenly this First Amendment activity becomes "terrorism" under the law, because of the "harassment or intimidation" and a "reasonable fear" of bodily injury.

The fact that lawmakers note the legislation doesn’t prohibit conduct "protected from legal prohibition by the First Amendment" shows that they realize it is vague and overly broad. It’s an attempt to cover their butts and ease public fears. But simply proclaiming "this legislation is Constitutional!" doesn’t make it so.

*This "terrorism" legislation chills free speech. Even if we buy the rhetoric of industry groups and lawmakers that this legislation won’t target First Amendment activity, the bill still creates a climate of fear and distrust. Reckless use of "eco-terrorism" rhetoric by industry groups and lawmakers has already created widespread concern among activists. Legislation that classifies non-violent crimes as "terrorism" is enough to make any reasonable person pause and think, "Is it worth it? Is speaking up really worth the risk of being labeled a ‘terrorist’?" That’s not a question anyone should have to ask. Even if legal, above-ground activists are not charged under this legislation, the damage is done.

*The legislation is a solution in search of a problem. You might have noticed that I haven’t spent much time critiquing clauses in the legislation dealing with bodily injury and death. That’s because the U.S. animal rights and environmental movements have not been responsible, directly or indirectly, for any bodily injury or death. To be very clear, there has been plenty of fiery rhetoric and plenty of extremely controversial and illegal actions. But tough talk isn’t enough to turn a crime into "terrorism." Using the War on Terrorism to go after crimes where "no bodily injury occurs" is an insult to the victims of 9/11, and a waste of scarce law enforcement resources.

3 Responses to "Analysis of AETA as it Passed Senate (S. 3880)"

on 05 Oct 2006 at 5:52 pm

Lisa Blanck

Well just put me down as an animal terrorist - since terrorist is the keyword to getting people wrought up over nothing these days. I’ll always put animal rights and treating them humanely over inhumanity. It’s that same ridiculous "if you’re not with us, you’re un-American" stupidity that rules these days that passed this blatantly self-serving "let’s feed that terrorism panic" bill.

on 05 Oct 2006 at 7:07 pm

Liam

While corporations ruthlessly murder animals to make a profit, those who speak out are prosecuted.

How American.

on 05 Oct 2006 at 7:23 pm

theresa siskind

i’m angry not one senator had the guts to oppose this bill…election year politics at it’s worst. why have the media been silent on this issue?